NLRB v. Safway Steel Scaffolds Company of Georgia, No. 23548.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPHILLIPS, THORNBERRY and DYER, Circuit
Citation383 F.2d 273
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. SAFWAY STEEL SCAFFOLDS COMPANY OF GEORGIA, Respondent.
Docket NumberNo. 23548.
Decision Date24 October 1967

383 F.2d 273 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
SAFWAY STEEL SCAFFOLDS COMPANY OF GEORGIA, Respondent.

No. 23548.

United States Court of Appeals Fifth Circuit.

September 7, 1967.

Rehearings Denied October 24, 1967.


383 F.2d 274
COPYRIGHT MATERIAL OMITTED
383 F.2d 275
Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Clarice Feldman, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Allison W. Brown, Jr., Atty., N. L. R. B. for petitioner

P. D. Thomson, John K. Aurell, Paul & Sams, Miami, Fla., for respondent.

Before PHILLIPS,* THORNBERRY and DYER, Circuit Judges.

THORNBERRY, Circuit Judge:

The National Labor Relations Board seeks enforcement of an order based upon a finding that respondent, Safway Steel Scaffolds Company of Georgia, violated sections 8(a) (1), 8(a) (3), and 8(a) (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1), (a) (3), (a) (5). In March, 1964, two months before expiration of the collective-bargaining agreement, the union advised the company that it desired to negotiate.1 The company replied that meetings would have to be delayed but offered to "save negotiation time and expense" by extending the existing contract for one year. Representatives of the union rejected this offer, saying they wanted to negotiate five items, including a wage increase of twenty cents "across the board." Meetings were held between May 4 and August 13, 1964. At the meetings, representatives of management insisted on wage reductions up to twenty-nine cents per hour for warehousemen and fifteen cents for drivers (which meant an hourly wage of $1.45 for warehousemen and $1.75 for drivers). On June 30 the union notified the company that the employees would strike on the following day, and on July 1 six of the company's eight employees did, in fact, go on strike. After receiving notification of strike on June 30, the company announced it would put in effect the wage reduction previously threatened;2 and on July 1 warehousemen were reduced by twenty-nine cents and drivers by fifteen cents. Also on July 1, the company advised each striker by letter that he would be discharged if he did not return by July 6. The six strikers plus a seventh employee who had been hospitalized at the commencement of the strike chose to accept discharge.

In August, 1964, a mediator made two attempts to reconcile the parties. At the second meeting of August 13, the union agreed to accept the exact terms of the old contract; but the company insisted on wage reductions and other changes unfavorable to the union. On September 18 the union notified the company by telegram that the strikers would return to work unconditionally and on September 21 all seven reported to the plant; but the manager, Mr. John Wallace, turned them away.3 Eventually, five of the seven were hired at the reduced rates.

Unfair-labor-practice charges had been filed with the Board on August 14. After a hearing in February, 1965, the trial examiner concluded that the company, by

383 F.2d 276
its entire course of conduct, had attempted to undermine the union and had refused to bargain in good faith, thus violating sections 8(a) (1) and 8(a) (5) of the Act. He further held that the refusal to bargain in good faith caused the strike and that the employees were therefore unfair-labor-practice strikers entitled to reinstatement upon unconditional application. The refusal to reinstate constituted discrimination in violation of section 8(a) (3). The examiner recommended that the company be ordered to cease and desist from the unfair practices found and that it be enjoined from infringing in any manner upon the rights to organize and engage in concerted activities as guaranteed by section 7. Affirmatively, he recommended that the company be required to bargain with the union upon request, to revoke the unilateral wage scale adopted on July 1, to offer reinstatement to two employees, to make whole all employees for economic losses suffered by reason of the discrimination found or by reason of the unilateral wage reductions, and to post appropriate notices of its obligations under the order. The Board adopted the trial examiner's recommendations in full. After careful review of the record, we conclude that there is substantial evidence to support enforcement of the Board's order except to the extent that it would enjoin the company from violating section 7 "in any other manner." This part of the order is overbroad and will not be enforced

I. Alleged Procedural Errors

Before considering the unfair labor practices in dispute, we will dispose of respondent's contention that procedural errors committed by the trial examiner require reversal. First, it is asserted that the examiner erred in denying a motion for leave to take depositions.4 In a nutshell, respondent argues that it needed to take depositions in order to probe the oral accounts forming the basis for the Board's charges, that the examiner was wrong in ruling that the Act does not provide for discovery, and that this error prejudiced its substantial rights and constituted a denial of due process. In his ruling, the examiner relied principally upon NLRB v. Globe Wireless, 9th Cir. 1951, 193 F.2d 748, 751, wherein the court held that the refusal to allow the taking of depositions was not a denial of due process since the Act does not provide for pretrial discovery.

Section 10(b) of the Act would appear to give a trial examiner authority to permit the taking of depositions in any case where such a procedure would be practical:

Any such unfair labor practice proceeding shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States, * * *5

However, the practicality of having pretrial discovery in labor proceedings has been somewhat uncertain. In 1960, Member Jenkins submitted a committee's proposals for changes in the Board's rules and regulations. 45 L.R.R.M. 94, 101 (1960). Among other things, he noted that it would be desirable to have pretrial discovery but that it would not be feasible for trial examiners to preside over the taking of all depositions. He went on to say that there was no reason why the inability of examiners to preside should be an insuperable obstacle:

Personally, I can see no reason why such depositions could not be taken by either party as a matter of right before anyone authorized by the state or Federal government to take oaths, if some means could be devised for enforcing this right without having to
383 F.2d 277
resort to the tedious and time-consuming process of obtaining a court order to enforce the right of deposition.

The Board was persuaded by this comment and evidently did not visualize any real problem of enforcement; for its rules and regulations now provide a detailed procedure for the taking of depositions if in the judgment of the trial examiner good cause has been shown. NLRB: Statements of Procedure, Rules and Regulations §§ 102.30, 102.35 (Lab. Rel.Rep. LRX 4058, 4060). In light of section 10(b) and of these new rules, which were in effect when the hearing in the instant case was conducted, we must conclude that the examiner was wrong in holding that there is absolutely no provision for pretrial discovery.

It is within the trial examiner's discretion to grant or deny a motion for leave to take depositions, but here the examiner did not believe he had any discretionary authority to exercise.6 We will assume, therefore, that respondent showed good cause for granting the motion and that a procedural error was committed. The question remains whether the error was prejudicial. It is clear that in ordinary civil cases tried in federal courts, an appeal based on an infraction of the rules will not succeed unless the infraction was substantial enough to prejudice the appellant's case. Bell v. Swift & Co., 5th Cir. 1960, 283 F.2d 407; Tiedman v. American Pigment Corp., 4th Cir. 1958, 253 F.2d 803; Fed.R.Civ.P. 61; Wright, Federal Courts, § 81, at 312 (1963). Applying this same standard of review, we conclude that the denial of the motion for leave to take depositions was a technical error which did not result in prejudice to respondent's case.

The Board's finding of unfair labor practices was predicated in part on alleged statements by respondent's manager, Mr. John Wallace, which tended to undermine the union and in part on a unilateral reduction in wages before a bargaining impasse had been reached. The unilateral reduction in wages was determined by looking to the chronology of events about which there is no dispute. Respondent could not have shed a different light on this matter by engaging in pretrial discovery. The alleged statements by Wallace were reported by the strikers, especially by Frank Edward Cogdel. These men were all available to testify as witnesses, and the company had ample opportunity to discredit their accounts by cross-examining those who testified for the General Counsel or by presenting rebuttal testimony.7 Further, the company was given an opportunity to examine a statement made before the hearing by Frank Edward Cogdel to an attorney for the Board. In all, it appears that respondent had a full and fair hearing and that its rights were not prejudiced by the procedural defect. In Bell v. Swift & Co., 5th Cir. 1960, 283 F.2d 407, 409, this Court made it clear that where a trial is conducted properly and all evidence is heard, the failure of the trial judge to allow discovery will not amount to prejudicial error.

Respondent complains of a second procedural error necessitating reversal. Witness David Frechette, a union official, testified as to matters discussed during the various meetings. On crossexamination,

383 F.2d 278
counsel for the company elicited from him the fact that he had an interview with...

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38 practice notes
  • Robbins Tire & Rubber Co. v. N.L.R.B., No. 76-2099
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 1977
    ...all parties may be properly protected." NLRB v. Rex Disposables,494 F.2d 588, 592 (CA5, 1974), citing NLRB v. Safway Steel Scaffolds Co.,383 F.2d 273 (CA5, 1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1052, 19 L.Ed.2d 1150 (1968); NLRB v. Miami Coca-Cola Bottling Co., 403 F.2d 994 (CA5, 1968......
  • National Labor Relations Board v. Robbins Tire and Rubber Company, No. 77-911
    • United States
    • United States Supreme Court
    • June 15, 1978
    ...in unfair labor practice proceedings. NLRB v. Rex Disposables, 494 F.2d 588, 592 (1974), citing NLRB v. Safway Steel Scaffolds Co., 383 F.2d 273 (CA5 1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1052, 19 L.Ed.2d 1150 (1968) (relying on § 10(b) of the NLRA, 29 U.S.C. § 160(b)). This view of d......
  • Title Guarantee Co. v. N.L.R.B., No. 725
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 2, 1976
    ...(2d Cir. 1975). But see NLRB v. Miami Coca-Cola Bottling Co., 403 F.2d 994 (5th Cir. 1968); NLRB v. Safway Steel Scaffolds Co. of Georgia, 383 F.2d 273 (5th Cir. 1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1052, 19 L.Ed.2d 1150 7 NLRB v. Martin A. Gleason, Inc., Nos. 75-4018, -4045, -4047, ......
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • November 18, 1994
    ...have expressly held that the Jencks Act is applicable to administrative proceedings (NLRB v. Safeway Steel Scaffolds Co. of Georgia, 383 F.2d 273 (5th Cir.1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1052, 19 L.Ed.2d 1150; Harvey Aluminum, Inc. v. NLRB, 335 F.2d 749 (9th Cir.1964); NLRB v. A......
  • Request a trial to view additional results
38 cases
  • Robbins Tire & Rubber Co. v. N.L.R.B., No. 76-2099
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 1977
    ...all parties may be properly protected." NLRB v. Rex Disposables,494 F.2d 588, 592 (CA5, 1974), citing NLRB v. Safway Steel Scaffolds Co.,383 F.2d 273 (CA5, 1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1052, 19 L.Ed.2d 1150 (1968); NLRB v. Miami Coca-Cola Bottling Co., 403 F.2d 994 (CA5, 1968......
  • National Labor Relations Board v. Robbins Tire and Rubber Company, No. 77-911
    • United States
    • United States Supreme Court
    • June 15, 1978
    ...in unfair labor practice proceedings. NLRB v. Rex Disposables, 494 F.2d 588, 592 (1974), citing NLRB v. Safway Steel Scaffolds Co., 383 F.2d 273 (CA5 1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1052, 19 L.Ed.2d 1150 (1968) (relying on § 10(b) of the NLRA, 29 U.S.C. § 160(b)). This view of d......
  • Title Guarantee Co. v. N.L.R.B., No. 725
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 2, 1976
    ...(2d Cir. 1975). But see NLRB v. Miami Coca-Cola Bottling Co., 403 F.2d 994 (5th Cir. 1968); NLRB v. Safway Steel Scaffolds Co. of Georgia, 383 F.2d 273 (5th Cir. 1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1052, 19 L.Ed.2d 1150 7 NLRB v. Martin A. Gleason, Inc., Nos. 75-4018, -4045, -4047, ......
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • November 18, 1994
    ...have expressly held that the Jencks Act is applicable to administrative proceedings (NLRB v. Safeway Steel Scaffolds Co. of Georgia, 383 F.2d 273 (5th Cir.1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1052, 19 L.Ed.2d 1150; Harvey Aluminum, Inc. v. NLRB, 335 F.2d 749 (9th Cir.1964); NLRB v. A......
  • Request a trial to view additional results

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